2016

Three major requirements must be addressed

by Marilyn R. Block

Many companies with environmental management systems (EMS)
also have registered quality management systems (QMS). Frequently, the
quality system representative is designated as the EMS representative
because he or she is knowledgeable about systems.

This dual role is almost always true when the QMS and EMS
have been integrated; and it is more typical than not even when the two
systems are established as separate, parallel efforts.

Quality assurance managers attempting to understand the
requirements of ISO 14001 often are confused about the references to regulatory
compliance. Limited or no previous exposure to environmental regulatory
requirements leads to questions concerning the role ISO 14001 plays in
assuring regulatory compliance.

1. An organization must identify all of its environmental
legal obligations and be familiar with all applicable environmental laws
and regulations. Additionally, the organization must have some mechanism
for ensuring that new legal obligations are identified in a timely fashion.

2. The environmental policy must contain a commitment to
understand and comply with all applicable environmental laws and regulations.
Words on paper aren't sufficient; an organization must make every effort
to fulfill its commitment to do what it says it is going to do.

3. Compliance with identified legal requirements must be
evaluated on some self-defined periodic basis. Whether an organization
engages in a comprehensive compliance audit or employs a variety of monitoring
activities, it must know whether all identified legal requirements are
being met. In the event a regulatory noncompliance is identified, the
organization must take action to correct the noncompliance and prevent
it from recurring.

These requirements do not impose specific performance standards
on organizations. The international scope of ISO 14001, coupled with differing
national laws and enforcement policies, makes it impossible to establish
acceptable parameters for air emissions, water discharges and other similar
environmental impacts. Instead, individual organizations must approach
these requirements within the context imposed by national, state or provincial,
and local laws.

U.S. regulatory agencies and registrars have somewhat different
expectations about the ways in which a company addresses these three requirements.

The regulatory viewNot surprisingly, many in the regulatory community and nongovernmental
environmental organizations question whether ISO 14001 contains sufficient
emphasis on regulatory compliance. In order to determine whether ISO 14001
registration results in improved regulatory compliance, several efforts
were launched shortly after publication of the standard in September 1996.

The most visible of these efforts is the Multi-State Working
Group (MSWG), an organization of state environmental agencies formed in
1996 in response to growing state interest in ISO 14001 and the potential
for environmental enforcement flexibility and other state initiatives.

By 1998, the MSWG had evolved from an informal working
meeting to a formal networking organization with elected officers. One
of the group's objectives is to enhance ISO 14001 regarding the relationship
of the EMS to regulatory compliance and performance regarding all significant
environmental aspects.

There does not appear to be a clear consensus among MSWG
members as to the value of ISO 14001. In a 1998 interview, Robert Stephens,
MSWG chair, stated that MSWG "is firmly committed to the voluntary nature
of the ISO 14001 standard and that this voluntary nature is not in conflict
with the public policy goals [the MSWG] is pursuing."1
That same month, a MSWG member suggested that the language in ISO 14001
is so loose that it undermines the credibility of the standard.2

To assist in resolving questions related to implementation
of ISO 14001 and regulatory compliance, the MSWG launched a research project
that same year. Information on the effect that an EMS has on regulatory
compliance was to be collected from pilot projects in a number of states
and organized into a database.

At the end of 2000, researchers concluded that the national
database could not provide any insight into whether companies with an
EMS have higher levels of regulatory compliance. It should be noted that
this project is ongoing and may provide such information at some future
date.

The registrars' perspectiveEven though MSWG thinks the jury is still out, ISO 14001 registrars
believe they have attained a verdict. Based on data collected during registration
audits, many ISO 14001 EMS lead auditors are convinced that an EMS does,
in fact, improve regulatory compliance.

In their efforts to address the requirement to identify
legal requirements, many organizations learn about regulations with which
they were previously unfamiliar and with which they should have been complying.
This increased level of awareness causes such organizations to become
compliant in areas previously ignored.

Moreover, periodic evaluation of compliance creates an
operating climate in which responding to regulatory lapses is considered
standard operating practice.

MSWG has suggested that registrars do not pay sufficient
attention to the regulatory compliance status of the companies they ultimately
register. This view is supported by examples in which registration is
approved and the organization is later found to be out of compliance with
a particular regulatory requirement. At its spring 2000 quarterly meeting,
MSWG authorized a review of U.S. third-party registrars.

It is important to understand that ISO 14001 registrars
evaluate the environmental management system. These registrars do not
seek to determine whether an organization is out of compliance with legal
requirements; rather, they attempt to verify whether the organization
has determined its compliance status.

According to Greg Hansa, vice president-technical development,
SGS International Certification Services Inc., an accredited ISO 14001
registrar, SGS "first assesses the ability of the EMS to adequately identify
appropriate environmental legislation and regulations. Once the EMS has
been determined to be effective in identifying regulatory requirements,
the system's monitoring and evaluation of compliance is audited. The ability
of the EMS to implement corrective and preventive action also is audited."

What happens if an audit team finds evidence of a regulatory
noncompliance? The existence of a noncompliance, in and of itself, should
not suggest that the EMS is deficient. If an SGS audit discovers a regulatory
noncompliance, it would determine whether the organization had identified
the same noncompliance.

"If it has been identified," states Hansa, "we would assess
the implementation of corrective and preventive action. If the noncompliance
has been adequately addressed, the EMS is in conformance with the applicable
elements of ISO 14001."

What if the EMS fails to identify a regulatory noncompliance
or, subsequent to identification, fails to respond appropriately? In the
first case, SGS would write a nonconformance against clause 4.3.2, which
requires identification of legal requirements. In the latter case, the
nonconformance would be linked to clause 4.2, which requires inclusion
in the environmental policy of a commitment to compliance.

When asked to distinguish between systemic failure and
isolated problems, Hansa offered the following: "If the EMS fails to identify
or respond appropriately to an isolated noncompliance, the system nonconformance
probably would be considered 'minor.' However, if the EMS consistently
fails to identify or adequately address regulatory noncompliances, a total
breakdown of the appropriate element of the management system would be
cited and would likely be categorized as a 'major' nonconformance."

How often are such nonconformances written? "Seldom," says
Hansa. "We find that our client organizations are indeed committed to
protecting the environment and regulatory compliance. The structure and
voluntary nature of their ISO 14001 programs allow them to proactively
become familiar with their legal obligations and address any issues without
much of the fear and pain historically associated with these issues."

ConclusionDuring the drafting of ISO 14001 from 1993 to 1996, reference to regulatory
compliance was the focus of much debate among members of the U.S. technical
advisory group (TAG) charged with establishing the official U.S. position
on the environmental management system standard.

The ISO mandated five-year review process has provided
an opportunity to again consider whether ISO 14001 adequately addresses
this issue. However, the decision by ISO Technical Committee 207 not to
include any new requirements in the ISO 14001 revision, scheduled for
publication in late 2001, rendered this debate moot.

It is fair to state that the TAG remains somewhat split
on whether ISO 14001 requires additional language on this point. Those
TAG members representing federal and state regulatory agencies and nongovernmental
environmental organizations tend to favor more stringent language and,
therefore, more prescriptive requirements about regulatory compliance
by those who seek ISO 14001 registration. TAG participants from various
industry sectors tend to support current language pertaining to regulatory
compliance and resist more stringent requirements.

Additional language would appear to be superfluous. Any
organization in the United States is obligated to identify, understand
and comply with applicable environmental laws and regulations. The decision
to implement ISO 14001 does not change that obligation; in fact, it tends
to improve an organization's environmental performance.

MARILYN R. BLOCK is president of MRB Associates, an
environmental management system consulting firm. She earned a doctorate
in human development from the University of Maryland, College Park. Block
co-authored the Quality Press book Integrating ISO 14000 Into a Quality
Management System and authored Implementing ISO 14000 and
Identifying Environmental Aspects and Impacts. She is a member of ASQ.

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